Judicial nominee fight looming in Washington

October 31, 2013

The first of President Barack Obama's three controversial nominees to what is widely considered the nation's second most powerful court could face a final confirmation vote in the Senate today.

Senate Majority Harry Reid, D-Nev., and 16 other senators - including West Virginia Democrat Jay Rockefeller - moved earlier this week to cut off debate on the nomination of Virginia attorney and former Solicitor General Patricia Millett as judge for the U.S. Court of Appeals for the District of Columbia Circuit. If at least 60 senators agree today to do so, her confirmation will proceed to the floor for a vote.

The D.C. Circuit Court of Appeals is considered by many to be the nation's second most important court because it often has the final word on rules handed down by federal administrative agencies, such as the Internal Revenue Service and Environmental Protection Agency. As currently composed, its eight judges are split - four appointed by Republican presidents, four appointed by Democrats.

Opponents of Obama's picks for the court - including Republican Sen. Rob Portman of Ohio - argue that even with three vacancies, the D.C. circuit has the lightest workload among the 13 intermediate federal appeals courts and doesn't need new judges. Portman and GOP leaders suggest the nominations are calculated to tilt the court in favor of an aggressive regulatory agenda rather than fill a need.

Both Democrats and Republicans are accusing each other of playing politics, however.

"Refusing to vote on qualified nominees for judicial vacancies delays justice. The president has a constitutional responsibility to nominate federal judges, and the Senate has a constitutional responsibility to fairly and thoughtfully consider those nominees on their merits," Rockefeller, D-W.Va., said Wednesday. "That's how our democracy is supposed to work, and we do great disservice to the nation if we let politics get in the way."

Sen. Sherrod Brown, D-Ohio, hasn't made up his mind on Millett but rejects the notion Obama's appointments are politically motivated, according to spokesman Yianni Varonis.

"Sen. Brown believes that the president has appointed each of his judicial nominees based on their qualifications and ability to make impartial rulings based solely on the law. Sen. Brown looks forward to learning more about Ms. Millett and will base his decision on that same criteria," he said.

A spokesman for Sen. Joe Manchin, D-W.Va., said he had yet to be briefed on the Millett nomination and couldn't comment on it until today.

Carrie Severino of the Judicial Crisis Network - a former clerk to Supreme Court Justice Clarence Thomas and Judge David B. Sentelle of the D.C. Circuit Court of Appeals - testified Tuesday before the House Committee on the Judiciary.

Following her testimony, she said her experience as a clerk in the D.C. Circuit from 2004-05 seemed "relaxed" compared to that of her friends working in other circuits.

"I felt like I had a pretty cushy gig ... ," Severino said. "There is a concerted effort to make the D.C. Circuit into a glide path for the exact kind of regulatory overreach that Sen. Manchin is fighting."

Nan Aron, president of the Alliance for Justice, refuted claims the D.C. Circuit is underworked, testifying before the committee that the court has 1,479 pending cases - nearly 500 more than it did a decade ago. But Severino said that figure is misleading, noting the number fluctuates yearly.

A better gauge, she said, involves looking at the number of cases actually decided - particularly those that require oral arguments and consume the most time. By those metrics, she said, the D.C. Circuit ranks dead last.

"What we're seeing in the D.C. Circuit is that they're canceling hearings because there's not enough hearings to have oral arguments," Severino said.

Obama's other two picks for the court - Georgetown law professor Cornelia Pillard and Robert Wilkins - also await confirmation. Pillard's nomination was approved by the Senate Judiciary Committee along strict party lines, while Wilkins is expected to have his hearing before the committee this week.